WVC 16 - 30 - 2
§16-30-2. Legislative findings and purpose.
(a) Purpose. -- The purpose of this article is to ensure that
a patient's right to self-determination in health care decisions be
communicated and protected; and to set forth a process for private
health care decision making for incapacitated adults, including the
use of advance directives, which reduces the need for judicial
involvement and defines the circumstances under which immunity
shall be available for health care providers and surrogate decision
makers who make health care decisions.

The intent of the Legislature is to establish an effective
method for private health care decision making for incapacitated
adults, and to provide that the courts should not be the usual
venue for making decisions. It is not the intent of the
Legislature to legalize, condone, authorize or approve mercy
killing or assisted suicide.

(b) Findings. -- The Legislature hereby finds that:

(1) Common law tradition and the medical profession in general
have traditionally recognized the right of a capable adult to
accept or reject medical or surgical intervention affecting one's
own medical condition;

(2) The application of recent advances in medical science and
technology increasingly involves patients who are unconscious or
otherwise unable to accept or reject medical or surgical treatment
affecting their medical conditions;

(3) Such advances have also made it possible to prolong the dying process artificially through the use of intervening
treatments or procedures which, in some cases, offer no hope of
medical benefit;

(4) Capable adults should be encouraged to issue advance
directives designating their health care representatives so that in
the event any such adult becomes unconscious or otherwise incapable
of making health care decisions, decisions may be made by others
who are aware of such person's own wishes and values; and

(5) The right to make medical treatment decisions extends to
a person who is incapacitated at the moment of decision. An
incapacitated person who has not made his or her wishes known in
advance through an applicable living will, medical power of
attorney or through some other means has the right to have health
care decisions made on his or her behalf by a person who will act
in accordance with the incapacitated person's expressed values and
wishes, or, if those values and wishes are unknown, in the
incapacitated person's best interests.

(a) "Actual knowledge" means the possession of information of
the person's wishes communicated to the health care provider orally
or in writing by the person, the person's medical power of attorney
representative, the person's health care surrogate or other
individuals resulting in the health care provider's personal
cognizance of these wishes. Constructive notice and other forms of
imputed knowledge are not actual knowledge.

(b) "Adult" means a person who is eighteen years of age or
older, an emancipated minor who has been established as such
pursuant to the provisions of section twenty-seven, article seven,
chapter forty-nine of this code or a mature minor.

(c) "Advanced nurse practitioner" means a registered nurse
with substantial theoretical knowledge in a specialized area of
nursing practice and proficient clinical utilization of the
knowledge in implementing the nursing process, and who has met the
further requirements of title 19, legislative rules for West
Virginia board of examiners for registered professional nurses,
series 7 , who has a mutually agreed upon association in writing
with a physician and has been selected by or assigned to the person
and has primary responsibility for treatment and care of the
person.

(d) "Attending physician" means the physician selected by or
assigned to the person who has primary responsibility for treatment
and care of the person and who is a licensed physician. If more
than one physician shares that responsibility, any of those
physicians may act as the attending physician under this article.

(e) "Capable adult" means an adult who is physically and
mentally capable of making health care decisions and who is not
considered a protected person pursuant to the provisions of chapter
forty-four-a of this code.

(f) "Close friend" means any adult who has exhibited
significant care and concern for an incapacitated person who is
willing and able to become involved in the incapacitated person's
health care and who has maintained regular contact with the
incapacitated person so as to be familiar with his or her
activities, health and religious and moral beliefs.

(g) "Death" means a finding made in accordance with accepted
medical standards of either: (1) The irreversible cessation of
circulatory and respiratory functions; or (2) the irreversible
cessation of all functions of the entire brain, including the brain
stem.

(h) "Guardian" means a person appointed by a court pursuant to
the provisions of chapter forty-four-a of this code who is
responsible for the personal affairs of a protected person and includes a limited guardian or a temporary guardian.

(i) "Health care decision" means a decision to give, withhold
or withdraw informed consent to any type of health care, including,
but not limited to, medical and surgical treatments, including
life-prolonging interventions, psychiatric treatment, nursing care,
hospitalization, treatment in a nursing home or other facility,
home health care and organ or tissue donation.

(j) "Health care facility" means a facility commonly known by
a wide variety of titles, including, but not limited to, hospital,
psychiatric hospital, medical center, ambulatory health care
facility, physicians' office and clinic, extended care facility
operated in connection with a hospital, nursing home, a hospital
extended care facility operated in connection with a rehabilitation
center, hospice, home health care and other facility established to
administer health care in its ordinary course of business or
practice.

(l) "Incapacity" means the inability because of physical or
mental impairment to appreciate the nature and implications of a
health care decision, to make an informed choice regarding the alternatives presented and to communicate that choice in an
unambiguous manner.

(m) "Life-prolonging intervention" means any medical procedure
or intervention that, when applied to a person, would serve to
artificially prolong the dying process or to maintain the person in
a persistent vegetative state. Life-prolonging intervention
includes, among other things, nutrition and hydration administered
intravenously or through a feeding tube. The term "life-prolonging
intervention" does not include the administration of medication or
the performance of any other medical procedure considered necessary
to provide comfort or to alleviate pain.

(n) "Living will" means a written, witnessed advance directive
governing the withholding or withdrawing of life-prolonging
intervention, voluntarily executed by a person in accordance with
the requirements of section four of this article.

(o) "Mature minor" means a person less than eighteen years of
age who has been determined by a qualified physician, a qualified
psychologist or an advanced nurse practitioner to have the capacity
to make health care decisions.

(p) "Medical information" or "medical records" means and
includes without restriction any information recorded in any form
of medium that is created or received by a health care provider,
health care facility, health plan, public health authority, employer, life insurer, school or university or health care
clearinghouse that relates to the past, present or future physical
or mental health of the person, the provision of health care to the
person, or the past, present or future payment for the provision of
health care to the person.

(q) "Medical power of attorney representative" or
"representative" means a person eighteen years of age or older
appointed by another person to make health care decisions pursuant
to the provisions of section six of this article or similar act of
another state and recognized as valid under the laws of this state.

(r) "Parent" means a person who is another person's natural or
adoptive mother or father or who has been granted parental rights
by valid court order and whose parental rights have not been
terminated by a court of law.

(s) "Persistent vegetative state" means an irreversible state
as diagnosed by the attending physician or a qualified physician in
which the person has intact brain stem function but no higher
cortical function and has neither self-awareness or awareness of
the surroundings in a learned manner.

(t) "Person" means an individual, a corporation, a business
trust, a trust, a partnership, an association, a government, a
governmental subdivision or agency or any other legal entity.

(u) "Physician orders for scope of treatment (POST) form" means a standardized form containing orders by a qualified
physician that details a person's life-sustaining wishes as
provided by section twenty-five of this article.

(v) "Principal" means a person who has executed a living will
or medical power of attorney.

(w) "Protected person" means an adult who, pursuant to the
provisions of chapter forty-four-a of this code, has been found by
a court, because of mental impairment, to be unable to receive and
evaluate information effectively or to respond to people, events
and environments to an extent that the individual lacks the
capacity to: (1) Meet the essential requirements for his or her
health, care, safety, habilitation or therapeutic needs without the
assistance or protection of a guardian; or (2) manage property or
financial affairs to provide for his or her support or for the
support of legal dependents without the assistance or protection of
a conservator.

(x) "Qualified physician" means a physician licensed to
practice medicine who has personally examined the person.

(y) "Qualified psychologist" means a psychologist licensed to
practice psychology who has personally examined the person.

(z) "Surrogate decisionmaker" or "surrogate" means an
individual eighteen years of age or older who is reasonably
available, is willing to make health care decisions on behalf of an incapacitated person, possesses the capacity to make health care
decisions and is identified or selected by the attending physician
or advanced nurse practitioner in accordance with the provisions of
this article as the person who is to make those decisions in
accordance with the provisions of this article.

(aa) "Terminal condition" means an incurable or irreversible
condition as diagnosed by the attending physician or a qualified
physician for which the administration of life-prolonging
intervention will serve only to prolong the dying process.

WVC 16 - 30 - 4
§16-30-4. Executing a living will or medical power of attorney or
combined medical power of attorney and living will.
(a) Any competent adult may execute at any time a living will
or medical power of attorney. A living will or medical power of
attorney made pursuant to this article shall be: (1) In writing;
(2) executed by the principal or by another person in the
principal's presence at the principal's express direction if the
principal is physically unable to do so; (3) dated; (4) signed in
the presence of two or more witnesses at least eighteen years of
age; and (5) signed and attested by such witnesses whose signatures
and attestations shall be acknowledged before a notary public as
provided in subsection (d) of this section.

(b) In addition, a witness may not be:

(1) The person who signed the living will or medical power of
attorney on behalf of and at the direction of the principal;

(2) Related to the principal by blood or marriage;

(3) Entitled to any portion of the estate of the principal
under any will of the principal or codicil thereto: Provided, That
the validity of the living will or medical power of attorney shall
not be affected when a witness at the time of witnessing such
living will or medical power of attorney was unaware of being a
named beneficiary of the principal's will;

(4) Directly financially responsible for principal's medical
care;

(5) The attending physician; or

(6) The principal's medical power of attorney representative
or successor medical power of attorney representative.

(c) The following persons may not serve as a medical power of
attorney representative or successor medical power of attorney
representative: (1) A treating health care provider of the
principal; (2) an employee of a treating health care provider not
related to the principal; (3) an operator of a health care facility
serving the principal; or (4) any person who is an employee of an
operator of a health care facility serving the principal and who is
not related to the principal.

(d) It shall be the responsibility of the principal or his or
her representative to provide for notification to his or her
attending physician and other health care providers of the
existence of the living will or medical power of attorney or a
revocation of the living will or medical power of attorney. An
attending physician or other health care provider, when presented
with the living will or medical power of attorney, or the
revocation of a living will or medical power of attorney, shall
make the living will, medical power of attorney or a copy of either
or a revocation of either a part of the principal's medical
records.

(e) At the time of admission to any health care facility, each
person shall be advised of the existence and availability of living
will and medical power of attorney forms and shall be given
assistance in completing such forms if the person desires: Provided, That under no circumstances may admission to a health
care facility be predicated upon a person having completed either
a medical power of attorney or living will.

(f) The provision of living will or medical power of attorney
forms substantially in compliance with this article by health care
providers, medical practitioners, social workers, social service
agencies, senior citizens centers, hospitals, nursing homes,
personal care homes, community care facilities or any other similar
person or group, without separate compensation, does not constitute
the unauthorized practice of law.

(g) The living will may, but need not, be in the following
form and may include other specific directions not inconsistent
with other provisions of this article. Should any of the other
specific directions be held to be invalid, such invalidity shall
not affect other directions of the living will which can be given
effect without the invalid direction and to this end the directions
in the living will are severable.

STATE OF WEST VIRGINIA
LIVING WILL
Living will made this _____________________________________day of _______________(month, year).

I,___________________________________________________, being
of sound mind, willfully and voluntarily declare that I want my
wishes to be respected if I am very sick and not able to
communicate my wishes for myself. In the absence of my ability to
give directions regarding the use of life-prolonging medical
intervention, it is my desire that my dying shall not be prolonged
under the following circumstances:

If I am very sick and not able to communicate my wishes for
myself and I am certified by one physician, who has personally
examined me, to have a terminal condition or to be in a persistent
vegetative state (I am unconscious and am neither aware of my
environment nor able to interact with others), I direct that
life-prolonging medical intervention that would serve solely to
prolong the dying process or maintain me in a persistent vegetative
state be withheld or withdrawn. I want to be allowed to die
naturally and only be given medications or other medical procedures
necessary to keep me comfortable. I want to receive as much
medication as is necessary to alleviate my pain.

I give the following SPECIAL DIRECTIVES OR LIMITATIONS:
(Comments about tube feedings, breathing machines, cardiopulmonary
resuscitation, dialysis and mental health treatment may be placed
here. My failure to provide special directives or limitations does
not mean that I want or refuse certain treatments.)

It is my intention that this living will be honored as the
final expression of my legal right to refuse medical or surgical
treatment and accept the consequences resulting from such refusal.

I understand the full import of this living will.

_________________________________________________________________

Signed

_________________________________________________________________

_________________________________________________________________

Address

I did not sign the principal's signature above for or at the
direction of the principal. I am at least eighteen years of age
and am not related to the principal by blood or marriage, entitled
to any portion of the estate of the principal to the best of my
knowledge under any will of principal or codicil thereto, or
directly financially responsible for principal's medical care. I
am not the principal's attending physician or the principal's
medical power of attorney representative or successor medical power
of attorney representative under a medical power of attorney.

_______________________________ _________________________
WitnessDATE

________________________________________________________

WitnessDATE

_______________________________

STATE OF

_______________________________

COUNTY OF

I, _________________________, a Notary Public of said County,
do certify that ________________________________________, as
principal, and________________________ and ____________________, as
witnesses, whose names are signed to the writing above bearing date
on the _______________ day of _______, 20____,have this day
acknowledged the same before me.

Given under my hand this ______ day of ______, 20__.

My commission expires:______________________________________

_________________________________________________________________

Notary Public

(h) A medical power of attorney may, but need not, be in the
following form, and may include other specific directions not
inconsistent with other provisions of this article. Should any of
the other specific directions be held to be invalid, such
invalidity shall not affect other directions of the medical power
of attorney which can be given effect without invalid direction and
to this end the directions in the medical power of attorney are
severable.

STATE OF WEST VIRGINIAMEDICAL POWER OF ATTORNEY
Dated: _____________________________ , 20______

I,____________________________________________________, hereby

(Insert your name and address)

appoint as my representative to act on my behalf to give, withhold
or withdraw informed consent to health care decisions in the event
that I am not able to do so myself.

The person I choose as my representative is:
________________________________________________________________

(Insert the name, address, area code and telephone number of
the person you wish to designate as your representative)

The person I choose as my successor representative is:

If my representative is unable, unwilling or disqualified to
serve, then I appoint:

_________________________________________________________________

(Insert the name, address, area code and telephone number of
the person you wish to designate as your successor representative)

This appointment shall extend to, but not be limited to,
health care decisions relating to medical treatment, surgical
treatment, nursing care, medication, hospitalization, care and
treatment in a nursing home or other facility, and home health
care. The representative appointed by this document is
specifically authorized to be granted access to my medical records
and other health information and to act on my behalf to consent to,
refuse or withdraw any and all medical treatment or diagnostic
procedures, or autopsy if my representative determines that I, if
able to do so, would consent to, refuse or withdraw such treatment
or procedures. Such authority shall include, but not be limited
to, decisions regarding the withholding or withdrawal of
life-prolonging interventions.

I appoint this representative because I believe this person understands my wishes and values and will act to carry into effect
the health care decisions that I would make if I were able to do so
and because I also believe that this person will act in my best
interest when my wishes are unknown. It is my intent that my
family, my physician and all legal authorities be bound by the
decisions that are made by the representative appointed by this
document and it is my intent that these decisions should not be the
subject of review by any health care provider or administrative or
judicial agency.

It is my intent that this document be legally binding and
effective and that this document be taken as a formal statement of
my desire concerning the method by which any health care decisions
should be made on my behalf during any period when I am unable to
make such decisions.

In exercising the authority under this medical power of
attorney, my representative shall act consistently with my special
directives or limitations as stated below.

I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS ON
THIS POWER: (Comments about tube feedings, breathing machines,
cardiopulmonary resuscitation, dialysis, funeral arrangements,
autopsy and organ donation may be placed here. My failure to
provide special directives or limitations does not mean that I want
or refuse certain treatments.)

_________________________________________________________________

__________________________________________________________________

THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY
UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT
TO MY OWN MEDICAL CARE.

_______________________________

Signature of the Principal

I did not sign the principal's signature above. I am at least
eighteen years of age and am not related to the principal by blood
or marriage. I am not entitled to any portion of the estate of the
principal or to the best of my knowledge under any will of the
principal or codicil thereto, or legally responsible for the costs
of the principal's medical or other care. I am not the principal's
attending physician, nor am I the representative or successor
representative of the principal.

________________________________________________________

Witness: DATE

________________________________________________________

Witness: DATE

_______________________________

STATE OF

_______________________________

COUNTY OF

I, ________________________________, a Notary Public of said

County, do certify that_________________________________________,
as principal, and ____________________ and __________________, as
witnesses, whose names are signed to the writing above bearing date
on the ____________ day of _____________, 20_____, have this day
acknowledged the same before me.

Given under my hand this __________ day of _____________,
20____.

My commission expires:______________________________________

_________________________________________________________________

Notary Public

(i) A combined medical power of attorney and living will may,
but need not, be in the following form, and may include other
specific directions not inconsistent with other provisions of this
article. Should any of the other specific directions be held to be
invalid, such invalidity does not affect other directions of the
combined medical power of attorney and living will which can be
given effect without invalid direction and to this end the
directions in the combined medical power of attorney and living
will are severable.

STATE OF WEST VIRGINIA

COMBINED MEDICAL POWER OF ATTORNEY

AND LIVING WILL
Dated: ______________________________, 20______

I, ______________________________________________________,
hereby (Insert your name and address) appoint as my representative
to act on my behalf to give, withhold or withdraw informed consent
to health care decisions in the event that I am not able to do so
myself.

The person I choose as my representative is:

______________________________________________________________

(Insert the name, address, area code and telephone number of the
person you wish to designate as your representative).

If my representative is unable, unwilling or disqualified to
serve, then I appoint as my successor representative:

______________________________________________________________

(Insert the name, address, area code and telephone number of the
person you wish to designate as your successor representative).

This appointment shall extend to, but not be limited to,
health care decisions relating to medical treatment, surgical
treatment, nursing care, medication, hospitalization, care and
treatment in a nursing home or other facility, and home health
care. The representative appointed by this document is
specifically authorized to be granted access to my medical records
and other health information and to act on my behalf to consent to,
refuse or withdraw any and all medical treatment or diagnostic
procedures, or autopsy if my representative determines that I, if
able to do so, would consent to, refuse or withdraw such treatment
or procedures. Such authority shall include, but not be limited
to, decisions regarding the withholding or withdrawal of
life-prolonging interventions.

I appoint this representative because I believe this person
understands my wishes and values and will act to carry into effect
the health care decisions that I would make if I were able to do so, and because I also believe that this person will act in my best
interest when my wishes are unknown. It is my intent that my
family, my physician and all legal authorities be bound by the
decisions that are made by the representative appointed by this
document, and it is my intent that these decisions should not be
the subject of review by any health care provider or administrative
or judicial agency.

It is my intent that this document be legally binding and
effective and that this document be taken as a formal statement of
my desire concerning the method by which any health care decisions
should be made on my behalf during any period when I am unable to
make such decisions.

In exercising the authority under this medical power of
attorney, my representative shall act consistently with my special
directives or limitations as stated below.

I am giving the following SPECIAL DIRECTIVES OR LIMITATIONS ON
THIS POWER: (Comments about tube feedings, breathing machines,
cardiopulmonary resuscitation, dialysis, mental health treatment,
funeral arrangements, autopsy, and organ donation may be placed
here. My failure to provide special directives or limitations does
not mean that I want or refuse certain treatments).

1. If I am very sick and not able to communicate my wishes
for myself and I am certified by one physician who has personally
examined me, to have a terminal condition or to be in a persistent
vegetative state (I am unconscious and am neither aware of my environment nor able to interact with others,) I direct that
life-prolonging medical intervention that would serve solely to
prolong the dying process or maintain me in a persistent vegetative
state be withheld or withdrawn. I want to be allowed to die
naturally and only be given medications or other medical procedures
necessary to keep me comfortable. I want to receive as much
medication as is necessary to alleviate my pain.

2. Other directives:_____________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

_______________________________________________________________

THIS MEDICAL POWER OF ATTORNEY SHALL BECOME EFFECTIVE ONLY
UPON MY INCAPACITY TO GIVE, WITHHOLD OR WITHDRAW INFORMED CONSENT
TO MY OWN MEDICAL CARE.

_____________________________

Signature of the Principal

I did not sign the principal's signature above. I am at least
eighteen years of age and am not related to the principal by blood
or marriage. I am not entitled to any portion of the estate of the
principal or to the best of my knowledge under any will of the
principal or codicil thereto, or legally responsible for the costs
of the principal's medical or other care. I am not the principal's
attending physician, nor am I the representative or successor
representative of the principal.

Witness _____________________ DATE ___________

Witness _____________________ DATE ___________

STATE OF _________________________

COUNTY OF _________________________________

I, ______________________, a Notary Public of said county, do
certify that_____________________, as principal, and
____________________ and ____________________, as witnesses, whose
names are signed to the writing above bearing date on the _____ day
of ______________, 20___, have this day acknowledged the same
before me.

Given under my hand this _____ day of _________________,
20___.

My commission expires:_______________________________

________________________________

Signature of Notary Public

WVC 16 - 30 - 5
§16-30-5. Applicability and resolving actual conflict between
advance directives.
(a) The provisions of this article which directly conflict
with the written directives contained in a living will or medical
power of attorney executed prior to the effective date of this
statute shall not apply. An expressed directive contained in a
living will or medical power of attorney or by any other means the
health care provider determines to be reliable shall be followed.

(b) If there is a conflict between the person's expressed
directives, the physician orders for scope of treatment form and
the decisions of the medical power of attorney representative or
surrogate, the person's expressed directives shall be followed.

(c) In the event there is a conflict between two advance
directives executed by the person, the one most recently completed
takes precedence only to the extent needed to resolve the
inconsistency.

(d) If there is a conflict between the decisions of the
medical power of attorney representative or surrogate and the
person's best interests as determined by the attending physician
when the person's wishes are unknown, the attending physician shall
attempt to resolve the conflict by consultation with a qualified
physician, an ethics committee or by some other means. If the
attending physician cannot resolve the conflict with the medical power of attorney representative, the attending physician may
transfer the care of the person pursuant to subsection (b), section
twelve of this article.

WVC 16 - 30 - 6
§16-30-6. Private decision-making process; authority of living
will, medical power of attorney representative and
surrogate.
(a) Any capable adult may make his or her own health care
decisions without regard to guidelines contained in this article.

(b) Health care providers and health care facilities may rely
upon health care decisions made on behalf of an incapacitated
person without resort to the courts or legal process, if the
decisions are made in accordance with the provisions of this
article.

(c) The medical power of attorney representative or surrogate
shall have the authority to release or authorize the release of an
incapacitated person's medical records to third parties and make
any and all health care decisions on behalf of an incapacitated
person, except to the extent that a medical power of attorney
representative's authority is clearly limited in the medical power
of attorney.

(d) The medical power of attorney representative or
surrogate's authority shall commence upon a determination, made
pursuant to section seven of this article, of the incapacity of the
adult. In the event the person no longer is incapacitated or the
medical power of attorney representative or surrogate is unwilling
or unable to serve, the medical power of attorney representative or surrogate's authority shall cease. However, the authority of the
medical power of attorney representative or surrogate may
recommence if the person subsequently becomes incapacitated as
determined pursuant to section seven of this article unless during
the intervening period of capacity the person executes an advance
directive which makes a surrogate unnecessary or expressly rejects
the previously appointed surrogate as his or her surrogate. A
medical power of attorney representative or surrogate's authority
terminates upon the death of the incapacitated person except with
respect to decisions regarding autopsy, funeral arrangements or
cremation and organ and tissue donation: Provided, That the
medical power of attorney representative or surrogate has no
authority after the death of the incapacitated person to invalidate
or revoke a preneed funeral contract executed by the incapacitated
person in accordance with the provisions of article fourteen,
chapter forty-seven of this code prior to the onset of the
incapacity and either paid in full before the death of the
incapacitated person or collectible from the proceeds of a life
insurance policy specifically designated for that purpose.

(e) The medical power of attorney representative or surrogate
shall seek medical information necessary to make health care
decisions for an incapacitated person. For the sole purpose of making health care decisions for the incapacitated person, the
medical power of attorney representative or surrogate shall have
the same right of access to the incapacitated person's medical
information and the same right to discuss that information with the
incapacitated person's health care providers that the incapacitated
person would have if he or she was not incapacitated.

(f) If an incapacitated person previously expressed his or her
wishes regarding autopsy, funeral arrangements or cremation, organ
or tissue donation or the desire to make an anatomical gift by a
written directive such as a living will, medical power of attorney,
donor card, driver's license or other means, the medical power of
attorney representative or surrogate shall follow the person's
expressed wishes regarding autopsy, funeral arrangements or
cremation, organ and tissue donation or anatomical gift. In the
absence of any written directives, any decision regarding
anatomical gifts shall be made pursuant to the provisions of
article nineteen of this chapter.

(g) If a person is incapacitated at the time of the decision
to withhold or withdraw life-prolonging intervention, the person's
living will or medical power of attorney executed in accordance
with section four of this article is presumed to be valid. For the
purposes of this article, a physician or health facility may
presume in the absence of actual notice to the contrary that a person who executed a living will or medical power of attorney was
a competent adult when it was executed. The fact that a person
executed a living will or medical power of attorney is not an
indication of the person's mental incapacity.

WVC 16 - 30 - 7
§16-30-7. Determination of incapacity.
(a) For the purposes of this article, a person may not be
presumed to be incapacitated merely by reason of advanced age or
disability. With respect to a person who has a diagnosis of mental
illness or intellectual disability, such a diagnosis is not a
presumption that the person is incapacitated. A determination that
a person is incapacitated shall be made by the attending physician,
a qualified physician, a qualified psychologist or an advanced
nurse practitioner who has personally examined the person.

(b) The determination of incapacity shall be recorded
contemporaneously in the person's medical record by the attending
physician, a qualified physician, advanced nurse practitioner or a
qualified psychologist. The recording shall state the basis for
the determination of incapacity, including the cause, nature and
expected duration of the person's incapacity, if these are known.

(c) If the person is conscious, the attending physician shall
inform the person that he or she has been determined to be
incapacitated and that a medical power of attorney representative
or surrogate decision-maker may be making decisions regarding
life-prolonging intervention or mental health treatment for the
person.

WVC 16 - 30 - 8
§16-30-8. Selection of a surrogate.
(a) When a person is or becomes incapacitated, the attending
physician or the advanced nurse practitioner with the assistance of
other health care providers as necessary, shall select, in writing,
a surrogate. The attending physician or advanced nurse
practitioner shall reasonably attempt to determine whether the
incapacitated person has appointed a representative under a medical
power of attorney, in accordance with the provisions of section
four of this article, or if the incapacitated person has a
court-appointed guardian in accordance with the provisions of
article one, chapter forty-four-a of this code. If no
representative or court-appointed guardian is authorized or capable
and willing to serve, the attending physician or advanced nurse
practitioner is authorized to select a health care surrogate. In
selecting a surrogate, the attending physician or advanced nurse
practitioner must make a reasonable inquiry as to the existence and
availability of a surrogate from the following persons:

(1) The person's spouse;

(2) The person's adult children;

(3) The person's parents;

(4) The person's adult siblings;

(5) The person's adult grandchildren;

(6) The person's close friends;

(7) Any other person or entity, including, but not limited to,
public agencies, public guardians, public officials, public and
private corporations and other persons or entities which the
department of health and human resources may from time to time
designate in rules promulgated pursuant to chapter twenty-nine-a of
this code.

(b) After inquiring about the existence and availability of a
medical power of attorney representative or a guardian as required
by subsection (a) of this section and determining that such persons
either do not exist or are unavailable, incapable or unwilling to
serve as a surrogate, the attending physician or an advanced nurse
practitioner shall select and rely upon a surrogate in the order of
priority set forth in subsection (a) of this section, subject to
the following conditions:

(1) Where there are multiple possible surrogate decisionmakers
at the same priority level, the attending physician or the advanced
nurse practitioner shall, after reasonable inquiry, select as the
surrogate the person who reasonably appears to be best qualified.
The following criteria shall be considered in the determination of
the person or entity best qualified to serve as the surrogate:

(A) Whether the proposed surrogate reasonably appears to be
better able to make decisions either in accordance with the known
wishes of the person or in accordance with the person's best interests;

(B) The proposed surrogate's regular contact with the person
prior to and during the incapacitating illness;

(C) The proposed surrogate's demonstrated care and concern;

(D) The proposed surrogate's availability to visit the
incapacitated person during his or her illness; and

(E) The proposed surrogate's availability to engage in
face-to-face contact with health care providers for the purpose of
fully participating in the decision-making process;

(2) The attending physician or the advanced nurse practitioner
may select a proposed surrogate who is ranked lower in priority if,
in his or her judgment, that individual is best qualified, as
described in this section, to serve as the incapacitated person's
surrogate. The attending physician or the advanced nurse
practitioner shall document in the incapacitated person's medical
records his or her reasons for selecting a surrogate in exception
to the priority order provided in subsection (a) of this section.

(c) The surrogate is authorized to make health care decisions
on behalf of the incapacitated person without a court order or
judicial involvement.

(d) A health care provider or health care facility may rely
upon the decisions of the selected surrogate if the provider
believes, after reasonable inquiry, that:

(1) A guardian or representative under a valid, applicable
medical power of attorney is unavailable, incapable or unwilling to
serve;

(2) There is no other applicable advance directive;

(3) There is no reason to believe that such health care
decisions are contrary to the incapacitated person's religious
beliefs; and

(4) The attending physician or advanced nurse practitioner has
not received actual notice of opposition to any health care
decisions made pursuant to the provisions of this section.

(e) If a person who is ranked as a possible surrogate pursuant
to subsection (a) of this section wishes to challenge the selection
of a surrogate or the health care decision of the selected
surrogate, he or she may seek injunctive relief or may file a
petition for review of the selection of, or decision of, the
selected surrogate with the circuit court of the county in which
the incapacitated person resides or the supreme court of appeals.
There shall be a rebuttable presumption that the selection of the
surrogate was valid and the person who is challenging the selection
shall have the burden of proving the invalidity of that selection.
The challenging party shall be responsible for all court costs and
other costs related to the proceeding, except attorneys' fees,
unless the court finds that the attending physician or advanced nurse practitioner acted in bad faith, in which case the person so
acting shall be responsible for all costs. Each party shall be
responsible for his or her own attorneys' fees.

(f) If the attending physician or advanced nurse practitioner
is advised that a person who is ranked as a possible surrogate
pursuant to the provisions of subsection (a) of this section has an
objection to a health care decision to withhold or withdraw a
life-prolonging intervention which has been made by the selected
surrogate, the attending physician or advanced nurse practitioner
shall document the objection in the medical records of the patient.
Once notice of an objection or challenge is documented, the
attending physician or advanced nurse practitioner shall notify
the challenging party that the decision shall be implemented in
seventy-two hours unless the attending physician receives a court
order prohibiting or enjoining the implementation of the decision
as provided in subsection (e) of this section. In the event that
the incapacitated person has been determined to have undergone
brain death and the selected surrogate has authorized organ or
tissue donation, the decision shall be implemented in twenty-four
hours unless the attending physician receives a court order
prohibiting or enjoining the implementation of the decision as
provided in said subsection.

(g) If the surrogate becomes unavailable for any reason, the surrogate may be replaced by applying the provisions of this
section.

(h) If a person who ranks higher in priority relative to a
selected surrogate becomes available and willing to be the
surrogate, the person with higher priority may be substituted for
the identified surrogate unless the attending physician determines
that the lower-ranked person is best qualified to serve as the
surrogate.

(i) The following persons may not serve as a surrogate: (1)
A treating health care provider of the person who is incapacitated;
(2) an employee of a treating health care provider not related to
the person who is incapacitated; (3) an owner, operator or
administrator of a health care facility serving the person who is
incapacitated; or (4) any person who is an employee of an owner,
operator or administrator of a health care facility serving the
person who is incapacitated and who is not related to that person.

The medical power of attorney representative or the health
care surrogate shall make health care decisions:

(1) In accordance with the person's wishes, including
religious and moral beliefs; or

(2) In accordance with the person's best interests if these
wishes are not reasonably known and cannot with reasonable
diligence be ascertained; and

(3) Which reflect the values of the person, including the
person's religious and moral beliefs, to the extent they are
reasonably known or can with reasonable diligence be ascertained.

(b) Assessment of best interests.

An assessment of the person's best interests shall include
consideration of the person's medical condition, prognosis, the
dignity and uniqueness of every person, the possibility and extent
of preserving the person's life, the possibility of preserving,
improving or restoring the person's functioning, the possibility of
relieving the person's suffering, the balance of the burdens to the
benefits of the proposed treatment or intervention and such other
concerns and values as a reasonable individual in the person's
circumstances would wish to consider.

WVC 16 - 30 - 10
§16-30-10. Reliance on authority of living will, physician orders
for scope of treatment form, medical power of
attorney representative or surrogate decisionmaker
and protection of health care providers.
(a) A physician, licensed health care professional, health
care facility or employee thereof shall not be subject to criminal
or civil liability for good-faith compliance with or reliance upon
the directions of the medical power of attorney representative in
accordance with this article.

(b) A health care provider shall not be subject to civil or
criminal liability for surrogate selection or good faith compliance
and reliance upon the directions of the surrogate in accordance
with the provisions of this article.

(c) A health care provider, health care facility or employee
thereof shall not be subject to criminal or civil liability for
good-faith compliance with or reliance upon the orders in a
physician orders for scope of treatment form.

(d) No health care provider or employee thereof who in good
faith and pursuant to reasonable medical standards causes or
participates in the withholding or withdrawing of life-prolonging
intervention from a person pursuant to a living will made in
accordance with this article shall, as a result thereof, be subject
to criminal or civil liability.

(e) An attending physician who cannot comply with the living
will or medical power of attorney of a principal pursuant to this
article shall, in conjunction with the medical power of attorney
representative, health care surrogate or other responsible person,
effect the transfer of the principal to another physician who will
honor the living will or medical power of attorney of the
principal. Transfer under these circumstances does not constitute
abandonment.

WVC 16 - 30 - 11
§16-30-11. Negligence.
Nothing in this article shall be deemed to protect a provider
from liability for the provider's own negligence in the performance
of the provider's duties or in carrying out any instructions of the
medical power of attorney representative or surrogate. Nothing in
this article shall be deemed to alter the law of negligence as it
applies to the acts of any medical power of attorney representative
or surrogate or provider, and nothing herein shall be interpreted
as establishing a standard of care for health care providers for
purposes of the law of negligence.

WVC 16 - 30 - 12
§16-30-12. Conscience objections.
(a) Health care facilities. -- Nothing in this article shall
be construed to require a health care facility to change published
policy of the health care facility that is expressly based on
sincerely held religious beliefs or sincerely held moral
convictions central to the facility's operating principles.

(b) Health care providers. -- Nothing in this article shall be
construed to require an individual health care provider to honor a
health care decision made pursuant to this article if:

(1) The decision is contrary to the individual provider's
sincerely held religious beliefs or sincerely held moral
convictions; and

(2) The individual health care provider promptly informs the
person who made the decision and the health care facility of his or
her refusal to honor the decision. In such event, the medical
power of attorney representative or surrogate decision maker shall
have responsibility for arranging the transfer of the person to
another health care provider. The individual health care provider
shall cooperate in facilitating such transfer, and a transfer under
these circumstances shall not constitute abandonment.

WVC 16 - 30 - 13
§16-30-13. Interinstitutional transfers.
(a) In the event that a person admitted to any health care
facility in this state has been determined to lack capacity and
that person's medical power of attorney has been declared to be in
effect or a surrogate decisionmaker has been selected for that
person all in accordance with the requirements of this article and
that person is subsequently transferred from one health care
facility to another, the receiving health care facility may rely
upon the prior determination of incapacity and the activation of
the medical power of attorney or selection of a surrogate
decisionmaker as valid and continuing until such time as an
attending physician, a qualified physician, a qualified
psychologist or advanced nurse practitioner in the receiving
facility assesses the person's capacity. Should the reassessment
by the attending physician, a qualified physician, a qualified
psychologist or an advanced nurse practitioner at the receiving
facility result in a determination of continued incapacity, the
receiving facility may rely upon the medical power of attorney
representative or surrogate decisionmaker who provided health care
decisions at the transferring facility to continue to make all
health care decisions at the receiving facility until such time as
the person regains capacity.

(b) If a person admitted to any health care facility in this state has been determined to lack capacity and the person's medical
power of attorney has been declared to be in effect or a surrogate
decisionmaker has been selected for that person all in accordance
with the requirements of this article and that person is
subsequently discharged home in the care of a home health care
agency or hospice, the home health care agency or hospice may rely
upon the prior determination of incapacity. The home health care
agency or hospice may rely upon the medical power of attorney
representative or health care surrogate who provided health care
decisions at the transferring facility to continue to make all
health care decisions until such time as the person regains
capacity.

(c) If a person with an order to withhold or withdraw
life-prolonging intervention is transferred from one health care
facility to another, the existence of such order shall be
communicated to the receiving facility prior to the transfer and
the written order shall accompany the person to the receiving
facility and shall remain effective until a physician at the
receiving facility issues admission orders.

(d) If a person with a physician orders for scope of treatment
form is transferred from one health care facility to another, the
health care facility initiating the transfer shall communicate the
existence of the physician orders for scope of treatment form to the receiving facility prior to the transfer. The physician orders
for scope of treatment form shall accompany the person to the
receiving facility and shall remain in effect. The form shall be
kept at the beginning of the patient's transfer records unless
otherwise specified in the health care facility's policy and
procedures. After admission, the physician orders for scope of
treatment form shall be reviewed by the attending physician and one
of three actions shall be taken:

(1) The physician orders for scope of treatment form shall be
continued without change;

(2) The physician orders for scope of treatment form shall be
voided and a new form issued; or

(3) The physician orders for scope of treatment form shall be
voided without a new form being issued.

WVC 16 - 30 - 14
§16-30-14. Insurance.
(a) No policy of life insurance or annuity or other type of
contract that is conditioned on the life or death of the person,
shall be legally impaired or invalidated in any manner by the
withholding or withdrawal of life-prolonging intervention from a
person in accordance with the provisions of this article,
notwithstanding any terms of the policy to the contrary.

(b) The withholding or withdrawal of life-prolonging
intervention from a principal in accordance with the provisions of
this article does not, for any purpose, constitute a suicide and
does not constitute the crime of assisting suicide.

(c) The making of a living will or medical power of attorney
pursuant to this article does not affect in any manner the sale,
procurement or issuance of any insurance policy nor does it modify
the terms of an existing policy.

(d) No health care provider or health care service plan,
health maintenance organization, insurer issuing disability
insurance, self-insured employee welfare benefit plan, nonprofit
medical service corporation or mutual nonprofit hospital service
corporation shall require any person to execute a living will or
medical power of attorney as a condition for being insured for or
receiving health care services.

WVC 16 - 30 - 15
§16-30-15. Withholding of life support not assisted suicide or
murder.
The withholding or withdrawal of life-prolonging intervention
from a person in accordance with the decision of a medical power of
attorney representative or surrogate decision maker made pursuant
to the provisions of this article does not, for any purpose,
constitute assisted suicide or murder. The withholding or
withdrawal of life-prolonging intervention from a person in
accordance with the decisions of a medical power of attorney
representative or surrogate decision maker made pursuant to the
provisions of this article, however, shall not relieve any
individual of responsibility for any criminal acts that may have
caused the person's condition. Nothing in this article shall be
construed to legalize, condone, authorize or approve mercy killing
or assisted suicide.

WVC 16 - 30 - 16
§16-30-16. Preservation of existing rights and relation to
existing law; no presumption.
(a) The provisions of this article are cumulative with
existing law regarding an individual's right to consent to or
refuse medical treatment. The provisions of this article shall not
impair any existing rights or responsibilities that a health care
provider, a person, including a minor or an incapacitated person or
a person's family may have in regard to the withholding or
withdrawal of life-prolonging intervention, including any rights to
seek or forego judicial review of decisions regarding
life-prolonging intervention under the common law or statutes of
this state.

(b) This article creates no presumption concerning the
intention of an individual who has not executed a living will or
medical power of attorney to consent to, refuse or withdraw any and
all medical treatment or diagnostic procedures, including, but not
limited to, life-prolonging intervention.

WVC 16 - 30 - 17
§16-30-17. No abrogation of common law doctrine of medical
necessity.
Nothing in this article shall be construed to abrogate the
common law doctrine of medical necessity.

WVC 16 - 30 - 18
§16-30-18. Revocation.
(a) A living will or medical power of attorney may be revoked
at any time only by the principal or at the express direction of
the principal by any of the following methods:

(1) By being destroyed by the principal or by some person in
the principal's presence and at his or her direction;

(2) By a written revocation of the living will or medical
power of attorney signed and dated by the principal or person
acting at the direction of the principal. Such revocation shall
become effective only upon delivery of the written revocation to
the attending physician by the principal or by a person acting on
behalf of the principal.

The attending physician shall record in the principal's
medical record the time and date when he or she receives
notification of the written revocation; or

(3) By a verbal expression of the intent to revoke the living
will or medical power of attorney in the presence of a witness
eighteen years of age or older who signs and dates a writing
confirming that such expression of intent was made. Any verbal
revocation shall become effective only upon communication of the
revocation to the attending physician by the principal or by a
person acting on behalf of the principal. The attending physician
shall record, in the principal's medical record, the time, date and
place of when he or she receives notification of the revocation.

(b) There is no criminal or civil liability on the part of any person for failure to act upon a revocation made pursuant to this
section unless that person has actual knowledge of the revocation.

(c) The grant of a final divorce decree shall act as an
automatic revocation of the designation of the former spouse to act
as a medical power of attorney representative or successor
representative.

WVC 16 - 30 - 19
§16-30-19. Physician's duty to confirm, communicate and document
terminal condition or persistent vegetative state;
medical record identification.
(a) An attending physician who has been notified of the
existence of a living will executed under this article, without
delay after the diagnosis of a terminal condition or persistent
vegetative state of the principal, shall take steps as needed to
provide for confirmation, written certification and documentation
of the principal's terminal condition or persistent vegetative
state in the principal's medical record.

(b) Once confirmation, written certification and documentation
of the principal's terminal condition or persistent vegetative
state is made, the attending physician shall verbally or in writing
inform the principal of his or her condition or the principal's
medical power of attorney representative or surrogate, if the
principal lacks capacity to comprehend such information and shall
document such communication in the principal's medical record.

(c) All inpatient health care facilities shall develop a
system to visibly identify a person's chart which contains a living
will or medical power of attorney as set forth in this article.

WVC 16 - 30 - 20
§16-30-20. Living wills previously executed.
A living will executed prior to the effective date of this
article and which expressly provides for the withholding or
withdrawal of life-prolonging intervention or for the termination
of life-sustaining procedures in substantial compliance with the
provisions of section four of this article is hereby recognized as
a valid living will, as though it were executed in compliance with
the provisions of this article.

WVC 16 - 30 - 21
§16-30-21. Reciprocity.
A living will or medical power of attorney executed in another
state is validly executed for the purposes of this article if it is
executed in compliance with the laws of this state or with the laws
of the state where executed.

WVC 16 - 30 - 22
§16-30-22. Liability for failure to act in accordance with the
directives of a living will or medical power of
attorney or the directions of a medical power of
attorney representative or health care surrogate.
(a) A health care provider or health care facility without
actual knowledge of a living will or medical power of attorney
completed by a person is not civilly or criminally liable for
failing to act in accordance with the directives of a principal's
living will or medical power of attorney.

(b) A health care provider or a health care facility is
subject to review and disciplinary action by the appropriate
licensing board for failing to act in accordance with a principal's
directives in a living will or medical power of attorney, or the
decisions of a medical power of attorney representative or health
care surrogate: Provided, That the provider or facility had actual
knowledge of the directives or decisions.

(c) Once a principal has been determined to be incapacitated
in accordance with the provisions of this article and his or her
living will or medical power of attorney has become effective, any
health care provider or health care facility which refuses to
follow the principal's directives in a living will or medical power
of attorney or the decisions of a medical power of attorney
representative or health care surrogate, because the principal has asked the health care provider or health care facility not to
follow such directions or decisions, shall have two physicians, one
of whom may be the attending physician, or one physician and a
qualified psychologist, or one physician and an advanced nurse
practitioner, certify that the principal has regained capacity to
make the request. If such certification occurs, the provisions of
the applicable living will or medical power of attorney, or the
statute creating the authority of the health care surrogate shall
not apply because the principal has regained decision-making
capacity.

WVC 16 - 30 - 23
§16-30-23. Prohibition.
Under no circumstances may the presence or absence of a living
will or medical power of attorney be used to deny a person
admission to a health care facility.

WVC 16 - 30 - 24
§16-30-24. Need for a second opinion regarding incapacity for
persons with psychiatric mental illness,
intellectual disability or addiction.
For persons with psychiatric mental illness, intellectual
disability or addiction who have been determined by their attending
physician or a qualified physician to be incapacitated, a second
opinion by a qualified physician or qualified psychologist that the
person is incapacitated is required before the attending physician
is authorized to select a surrogate. The requirement for a second
opinion does not apply in those instances in which the medical
treatment to be rendered is not for the person's psychiatric mental
illness.

WVC 16 - 30 - 25
§16-30-25. Physician orders for scope of treatment form.
(a) No later than the first day of July, two thousand three,
the secretary of the department of health and human resources shall
implement the statewide distribution of standardized physician
orders for scope of treatment (POST) forms.

(b) Physician orders for scope of treatment forms shall be
standardized forms used to reflect orders by a qualified physician
for medical treatment of a person in accordance with that person's
wishes or, if that person's wishes are not reasonably known and
cannot with reasonable diligence be ascertained, in accordance with
that person's best interest. The form shall be bright pink in
color to facilitate recognition by emergency medical services
personnel and other health care providers and shall be designed to
provide for information regarding the care of the patient,
including, but not limited to, the following:

(1) The orders of a qualified physician regarding
cardiopulmonary resuscitation, level of medical intervention in the
event of a medical emergency, use of antibiotics and use of
medically administered fluids and nutrition and the basis for the
orders;

(2) The signature of the qualified physician;

(3) Whether the person has completed an advance directive or
had a guardian, medical power of attorney representative or surrogate appointed;

(4) The signature of the person or his or her guardian,
medical power of attorney representative, or surrogate
acknowledging agreement with the orders of the qualified physician;
and

(5) The date, location and outcome of any review of the
physician orders for scope of treatment form.

(c) The physician orders for scope of treatment form shall be
kept as the first page in a person's medical record in a health
care facility unless otherwise specified in the health care
facility's policies and procedures and shall be transferred with
the person from one health care facility to another.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
The WV Code Online is an unofficial copy of the annotated WV Code, provided as a convenience. It has NOT been edited for publication, and is not in any way official or authoritative.